Change

Glenn Greenwald takes a look at a devastating report from the ACLU on civil liberties during the Obama administration. What are we looking at here? It is not hyperbolic to call it W's third term:

But the primary cause of this Bush-Obama continuity is the vigorous embrace by both Presidents of the same theory of war and Terrorism -- the unlimited global battlefield and the President's resulting unconstrained power to act anywhere in the world without limits -- which was once so controversial during the Bush presidency but has now become mainstream, bipartisan consensus.

Which explains quite nicely Obama's assertion that as the executive, he can target an American citizen for execution, far from any battlefield with a complete lack of Congressional or judicial oversight.

Power corrupts:

Either way, this creeping unchecked authoritarianism marches forward unabated, and is now -- rather than the province of the right-wing GOP -- fully bipartisan consensus.  I really don't understand how progressives think they'll be taken seriously the next time there is a GOP President and they try to resurrect their feigned concern for these matters; they'll be every bit as credible as conservatives who pretend to be deficit-warriors and defenders of restrained government only when the other party is in power.  

But even that ultimately matters little: so entrenched is this institutional militarism, secrecy, surveillance and authoritarianism that even if there were greater public debate over it like there was during the Bush presidency, this system would hardly be affected, let alone threatened.  Governments and other power factions -- especially ones threatened by the prospect of social unrest and upheaval -- do not relinquish this sort of authority unless compelled to do so.

A Simple Rule for Law Enforcement

Presenting the HOLY SHIT!!!!! Rule:

HOLY SHIT, THAT SOUNDS LIKE FUN, my 26-year-old self thought. (Yes, I was a 26-year-old federal prosecutor. Defense attorney hand-wringing — which annoyed me at the time, but which I now join — goes here.) A helicopter raid! A raid jacket! A COMMAND CENTER! They’ll probably give me a gun. You know, in case any shit goes down.

But even at 26 I had a certain rudimentary old-mannish quality, and it occurred to me to ask — does that sound too good? So during lunch I wandered into the office of the U.S. Attorney– who had been my supervisor in rookie row not long before — to talk about it.

He listened sympathetically. Then he told me. “Ken,” he told me, “if your reaction to a proposal is “HOLY SHIT, THAT SOUNDS LIKE FUN,” then as a government lawyer and member of law enforcement, you almost certainly shouldn’t be doing it.”

Please bear in mind, that had this rule been better followed by law enforcement, Steven Seagal would not have been allowed to use a fucking tank to stop a cock fight.

Life Immitates "The Wire"

Stringer Bell is spinning in his grave. I can't imagine how he didn't come up with this?

Just a Few Problems With Intellectual Property Laws

Simply unbelievable. By the logic used by the cops in this story, selling a copy of Andy Warhol's iconic soup cans would probably be illegal as well.  

Was It Worth It?

Naturally, every sane person is celebrating the quickly approaching demise of Qaddafi.Who wouldn't be? He is after all, an objectively terrible person and no friend to anyone anywhere (well, with the glaring exception of Venezuelan BFF: Hugo Chavez).

That said, over at Foreign Policy, Blake Hounshell asks whether the intervention was worth it.

Despite his assurances to the contrary, I have to say "No. No it certainly was not." From his piece:

But these problems seem manageable over time, and it is in any case hard to imagine any Libyan government worse than Qaddafi, whose rule was not only deeply repressive and arbitrary at home but also destabilizing abroad. I disagree strongly with those, like CFR's Richard Haass, who would like to see some kind of foreign stabilization force -- not only is it not going to happen, but it's best if Libyans handle their own affairs as much as possible. They will make mistakes, but these will be their own mistakes. It's now their country once again.

And that's the best news about the fall of Qaddafi

He notes correctly, that the United States managed to effect the overthrow of Qaddafi for a mere $1.1 billion. And I don't say that to be snarky. Compared to the costs of Iraq, that's definitely regime change at bargain basement prices. That's certainly well and good.

And undoubtedly, it's wonderful that the Libyan people will be able to live out from under the yoke of their dictator. Granted though, how they intend to live, whether it be in a pluralistic democracy or a state of civil war remains to be seen. The point is that it's their problem to determine how their society will progress.

That final point however, is unfortunately one that undermines his argument.

The situation in Libya has always been a Libyan problem. To be sure, it certainly had regional ramifications (specifically in terms of refugees fleeing to other countries including NATO ally; Italy). However, strictly from a security perspective, this civil war had NOTHING to do with the United States. Neither our allies nor ourselves were in anyways threatened by actual physical danger.

And yet, off we went to war. Or off to "kinetic military action" or whatever the administration chose to designate it. The point is that the President chose to involve the United States in the affairs of another country despite a lack of threat. This is not to say that the President shouldn't want to involve the United States militarily in other countries. However, prior to this particular engagement, there was the now quaint notion of getting Congress' approval for such actions. In fact, there still exists a dusty law mandating that the President seek such approval.

And it was ignored.

Cops on Camera

Coming via Radley Balko's excellent The Agitator (your one stop shop for questionable police behavior), are a couple of excellent videos showing very divergent reactions by police to being filmed.

It's a bit of good cop/bad cop. We'll start with the bad cop first, just to give a good example of how law enforcement officers SHOULD NOT REACT to being filmed performing their public duties within a public area.



Nothing quite like ending a march against violence by putting a TV news cameraman in a choke hold is there, ladies and gentleman?

Following this, it's very important to stress that there are obviously many, many police officers out there who are the very image of professionalism.

The differences between the following video and the proceeding one are vast. In this case, the officer is in fact encountering an objectively dangerous weapon:



For the record, a Smith and Wesson .40 is substantially more dangerous than a video camera. However, this officer didn't even feel the need to raise his voice, let alone assault anyone. He identified a possible problem and treated it in a way one would hope (let's hope for unicorns while we're at it!), all officers would. Regardless of your feelings about open carry laws (for the record: I'm permitted to carry concealed and choose to do so precisely to avoid these sorts of conversations), the level of professionalism shown by this officer is undeniably admirable.

Unbelievable

I'm absolutely stunned. Oh my God...

Seriously, it's terrifying. Who watches the watchmen?

Just a Reminder

Even as the security state ramps up, there's still much for citizens to do. The Economist reminds us...

Juries do not only decide guilt or innocence; they can also serve as checks on unjust laws. Judges will not tell you about your right to nullify—to vote not guilty regardless of whether the prosecution has proven its case if you believe the law at issue is unjust. They may tell you that you may only judge the facts of the case put to you and not the law. They may strike you from a jury if do not agree under oath to do so, but  the right to nullify exists. There is reason to be concerned about this power: nobody wants courtroom anarchy. But there is also reason to wield it, especially today: if you believe that nonviolent drug offenders should not go to prison, vote not guilty. The creators of the television show "The Wire" vowed to do that a few years back ("we will...no longer tinker with the machinery of the drug war," wrote Ed Burns, Dennis Lehane, George Pelecanos, Richard Price and David Simon). And the illustrator of the  children's book that has every author banging his head against his desk and every parent cackling just wrote a sweet if somewhat simple  guide to nullification. The Fully Informed Jury Association has more. Happy Friday evening.

Please remember that in the event you're asked to send someone to prison for not hurting anyone. 

Scenes From Our Drug War

Radley Balko looks at a totally justifiable use of a SWAT team:

So I guess it’s settled, then. Clearly this 69-year-old man who at worst was selling prescription painkillers (and again, we don’t yet have any evidence of that, other than an alleged tip from an informant, who will likely never be identified) knowingly, intentionally took on a team of raiding cops while armed only with a handgun. No need to question the tactics, here. No need to ask if it was really the smartest idea for armed cops to force their way into the home of a sick elderly man with poor vision to serve a search warrant for evidence of nonviolent crimes. No need to ask any further questions at all, really. Just put your faith in Chief Jordan and the integrity of his department’s not-at-all-predetermined investigation.

Quick Link

Looks like I'm not the only one who thinks that Obama's undeclared, blatantly illegal war in Libya is well...blatantly illegal.

Update

Quick update on the SWAT raid over unpaid student loans here.

Looks like you may be able to default on your loans and not get shot by the police after all.

This is apt though:

Unless and until we hear that this "criminal investigation" involves some kind of imminent threat of violence, there will be no margin of excuse for it, only new opportunities for bureaucrats and commentators to demonstrate that they are perfectly content living in and even contributing to a police state.

Taking a Break

"We're here about your credit rating!"

Hey, taking a break today from my regularly scheduled posting.

So as not to leave you with with nothing, I'd like to throw out one quick link though: FOR THE LOVE OF GOD, PAY YOUR STUDENT LOANS!

For the majority of you who probably didn't bother following that link, allow me to quickly summarize:

A man with no criminal record and three small children at home at the time was roused from his bed, thrown onto the ground and handcuffed during a SWAT raid in search of what now? His estranged wife who had defaulted on her student loans. Unbelievably, the Department of Education is empowered to issue search warrants and call in SWAT teams for this kind of thing.

Just incredible.

A Growth Industry We Don't Need

Business is booming:

America has one-quarter of the world’s prisoners. More than 7 million people are under correctional supervision in this country. These staggering statistics—no other country comes close in percentage terms, let alone raw numbers—have serious consequences. For one thing, there is the fiscal cost: The corrections system lags only Medicaid in government spending growth on the state level. Yet most prisons are overcrowded, underserviced, and exponentially more dangerous than any decent society should tolerate.

Our Own Worst Enemy

Looking at a post by Lexington concerning the decline of Fourth Amendment protections in this country as a result of the war on terror, war on drugs or war on (insert cause name here) this leaps out:

Part of the damage is done by the habit of police everywhere to cut corners and stretch their prerogatives. But the Supreme Court has played a part, too. To take just one of Mr Shipler’s examples, the police must still usually show “probable cause” if they want a warrant to search a house. But for street encounters in which there is even the slightest possibility of danger to life, the court has over time substituted the woollier “reasonable grounds” or “reasonable suspicion”, thereby giving officers on the beat a latitude they are delighted to exploit. Most street pat-downs are never recorded, scrutinised by a prosecutor, challenged by a lawyer or adjudicated by a judge. Yet, says Mr Shipler, they weaken the fourth amendment and poison life on the street in a thousand poor neighbourhoods in America.

Emphasis mine.

What's terrible is that in just a week or so since this was published, the idea that police must show probable cause to enter your home has become sadly quaint.

Consider this ruling from the Indiana Supreme Court that citizens have no right to resist police officers that are entering their homes illegally:

In a 3-2 decision, Justice Steven David writing for the court said if a police officer wants to enter a home for any reason or no reason at all, a homeowner cannot do anything to block the officer's entry.

"We believe ... a right to resist an unlawful police entry into a home is against public policy and is incompatible with modern Fourth Amendment jurisprudence," David said. "We also find that allowing resistance unnecessarily escalates the level of violence and therefore the risk of injuries to all parties involved without preventing the arrest."

David said a person arrested following an unlawful entry by police still can be released on bail and has plenty of opportunities to protest the illegal entry through the court system.

It's quite fair to say, as the article does, that this is a reversal of common law dating back to the Magna Carta.

Unfortunately, this isn't limited to the states. In an 8-1 decision, the Supreme Court recently ruled that police can kick in your door if they hear sounds suggesting you might be destroying evidence:

It began when police in Lexington, Ky., were following a suspect who allegedly had sold crack cocaine to an informer and then walked into an apartment building. They did not see which apartment he entered, but when they smelled marijuana smoke come from one of the apartments, they wrongly assumed he had gone into that one. They pounded on the door and called "Police. Police. Police," and heard the sounds of people moving.

At this, the officers announced they were coming in, and they broke down the door. They found Hollis King smoking marijuana, and put him under arrest. They also found powder cocaine. King was convicted of drug trafficking and sentenced to 11 years in prison.

Anyone else think that police are going to start smelling pot an awful lot more frequently? 

Reality Check

Along with everyone else in the civilized world, I engaged in much needed (and I believe appropriate), celebrations regarding the death of Bin Laden.

Because let's face it: If anyone needed a killing, it was him.

That said, the success of the killing (both operationally and politically), provided the administration with the necessary excuse to launch another assassination attempt over the past few days. This time against (noted bad guy but unarguably...), American citizen Anwar al-Awlaki. Glenn Greenwald provides some necessary rain on the national parade:

There are certain civil liberties debates where, even though I hold strong opinions, I can at least understand the reasoning and impulses of those who disagree; the killing of bin Laden was one such instance.  But the notion that the President has the power to order American citizens assassinated without an iota of due process -- far from any battlefield, not during combat -- is an idea so utterly foreign to me, so far beyond the bounds of what is reasonable, that it's hard to convey in words or treat with civility.

How do you even engage someone in rational discussion who is willing to assume that their fellow citizen is guilty of being a Terrorist without seeing evidence for it, without having that evidence tested, without giving that citizen a chance to defend himself -- all because the President declares it to be so?  "I know Awlaki, my fellow citizen, is a Terrorist and he deserves to die.  Why?  Because the President decreed that, and that's good enough for me.  Trials are so pre-9/11."  If someone is willing to dutifully click their heels and spout definitively authoritarian anthems like that, imagine how impervious to reason they are on these issues.

And if someone is willing to vest in the President the power to assassinate American citizens without a trial far from any battlefield -- if someone believes that the President has that power:  the power of unilaterally imposing the death penalty and literally acting as judge, jury and executioner -- what possible limits would they ever impose on the President's power?  There cannot be any.  Or if someone is willing to declare a citizen to be a "traitor" and demand they be treated as such -- even though the Constitution expressly assigns the power to declare treason to the Judicial Branch and requires what we call "a trial" with stringent evidence requirements before someone is guilty of treason -- how can any appeals to law or the Constitution be made to a person who obviously believes in neither?

Your Tax Dollars at Work

The Guardian UK features an interview with a de-facto Englishman who is absolutely unhappy about that inconvenient fact.

Regardless of your position on immigration, I think it's important to consider the incredible expenses that must have been involved in deporting this man who was clearly, ruining the economy by stealing American DJing jobs.

Then we drove through LA to pick up others. When I saw people crying and kissing their families goodbye, it started to click that something serious was happening. I was put in a room with 75 men and six hours later handed a letter with a check box that read: deported for 10 years. I wasn't allowed to see a lawyer. I was driven to the airport and flown to a detention centre in New Mexico. The plane was pitch dark and my arms and legs were handcuffed. I wet myself trying to get to the toilet.

Otero County processing centre is a huge warehouse in the desert. I was shown my room: a 50-man dorm, with bunk beds lined along each wall, a security guard in one corner and five exposed toilets and showers in another. There were no windows, just the buzz of halogen lights and the sound of men from various different countries shouting, fighting and playing dominoes. Although I didn't know it at the time, this would be my home for the next three months.

A Modest Proposal

In light of the recent news that as many as 400 cops in New York City might face disciplinary action for ticket fixing, Conor Friedersdorf offers what I would consider to be a modest proposal:

Here is an inescapable conclusion: police officers in New York City need to be monitored more closely. So do police officers everywhere else. Were it up to me, the cops of America would have a dashboard camera on every cruiser, a digital audio recorder in every pocket, a camcorder running during every interrogation, and secret internal affairs officers operating in every precinct. The exoneration of wrongfully accused police officers would please me as much as the bad cops who were punished for breaking the law or acting unprofessionally. I'd also pass a federal law permitting United States citizens to record the activity of on duty cops without fear of being prosecuted (nope, you don't necessarily have that right already, depending on where you live). Reason magazine's Radley Balko wrote a great how-to guide on the subject here.

Makes perfect sense to me. The only thing I would add would be that not only must citizens be protected by the law when they record police, but they MUST record them! The only way the abuse of authority can be countered is by proper, civil vigilance.

Quote of the Day

Connor Friedersdorf asks:

"Feel safer?"

Once Again, We Must Protect the Children from Themselves

Ok...the hysteria over teenagers 'sexting' each other has officially gone way too far. Granted, this is an unfortunate story and I feel very bad for the girl involved. I hate to be trite and say something like "kids will be kids" but that's really what happened here. It never should have been treated as anything other than telephone harassment. The idea that children would have to register as sexual offenders and principals would be empowered to further violate childrens privacy (already a slim, slim right for kids), by searching their cell phones is just too, too much. The bottom line is this:

“After the story broke, parents called us because they didn’t know about the law that could send kids to jail for a bad choice,” said Courtney Schrieve, a spokeswoman for the North Thurston Public Schools. “Kids didn’t know about it either. So we decided to turn this into an opportunity to educate teachers, parents and students.”

If a large segment of society doesn't realize that they could go to jail for breaking a law, is it a good law? I think not. I think it's time for lawmakers to realize that just because something is recognized generally as "dumb, bad, awful, rude or immature", that does not necessary mean that it is or should be recognized as "criminal".

Quote of the Day

David Simon, creator of "The Wire" on the arrest of acttress Felicia "Snoop" Pearson:

In an essay published two years ago in Time magazine, the writers of The Wire made the argument that we believe the war on drugs has devolved into a war on the underclass, that in places like West and East Baltimore, where the drug economy is now the only factory still hiring and where the educational system is so crippled that the vast majority of children are trained only for the corners, a legal campaign to imprison our most vulnerable and damaged citizens is little more than amoral. And we said then that if asked to serve on any jury considering a non-violent drug offense, we would move to nullify that jury's verdict and vote to acquit. Regardless of the defendant, I still believe such a course of action would be just in any case in which drug offenses—absent proof of violent acts—are alleged.

Both our Constitution and our common law guarantee that we will be judged by our peers.  But in truth, there are now two Americas, politically and economically distinct. I, for one, do not qualify as a peer to Felicia Pearson. The opportunities and experiences of her life do not correspond in any way with my own, and her America is different from my own. I am therefore ill-equipped to be her judge in this matter.